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Suzanne Dovi 80x108In June, the Supreme Court ruled in favor of the pro-life Susan B. Anthony List organization which had challenged the legality of an Ohio law that banned candidates from lying during political campaigns. Given the prevalence of lies in politics, does the practice need to be protected by law? Suzanne Dovi writes that given how effective lies can be, Americans may be tempted to turn to government to make their politicians more honest. She argues that this temptation should be resisted, as lies can be necessary, such as in matters of state security. Banning political lying, she says, would also prevent us from doing more to bridge the seemingly irreconcilable differences between those of different political opinions who often have deep disagreements over what is true.

Last month, the Supreme Court ruled in favor of the Susan B. Anthony List (SBA), a pro-life advocacy organization.  The central issue of Susan B. Anthony et al. v. Dreihaus et al.was whether the SBA has the legal standing to challenge the constitutionality of a 1995 Ohio Statute that it was not punished for violating.  Ohio Revised Code §3517.21(B) criminalizes certain false statements made during a political campaign; forbidding any person from lying about a candidate’s or public official’s voting record knowing it to be false or acting with disregard for its truth.  The lie in question involves a SBA press release that claimed then Ohio Democratic Congressman Steven Driehaus supported “government-funded abortions.” Dreihaus supported such abortions because he voted for the Patient Protection and Affordable Care Act (ACA).  The Ohio Elections Committee found the SBA’s depiction of Driehaus’ voting record was false and therefore violated the Ohio Statute.  Driehaus lost the election and ultimately dropped the legal case. The Supreme Court ruled that Susan B. Anthony List does have legal standing partially because of the burden the law imposes on electoral speech. Stopping lies can silence political speech.

Keep in mind that research shows that people lie in one out of every five interactions. In her TED talk, Pamela Meyerclaims that we’re lied to from 10 to 200 times per day. Lying during political campaigns, as in everyday life, is considered de rigueur. For some, the banality of lying is evidence of the freedom of speech. With free speech comes the misrepresentation of information, the omissions of relevant details, the promotion of conspiracy theories, and whoppers.  The 1st amendment in some sense underwrites the conditions for lying. Does the prevalence of lies require lying to be protected by law?

Surely having accurate information about public officials’ voting record is vital for democratic citizens’ ability to choose good representatives.  Given the complexities of public policy, and the difficulty of determining how politicians vote (due to the prevalence of voice votes), biographical information is often a stand-in for knowledge about a politician’s political record.  Politicians can misrepresent their health, their militaryservice, their affairs, their credentials, and their drug use, in order to get elected.

Credit: (Creative Commons BY)

Credit: (Creative Commons BY)

The worry that underlies Ohio’s statute, and the fifteen other states that restrict lies during campaigns, however, is that people can lie and get away with it. Richard Goodingdetailed how lies influenced the outcome of the South Carolina Republican primary in 2000.  After solidly defeating George W. Bush in New Hampshire, John McCain’s candidacy plummeted as false rumors spread.  According to these rumors, McCain had an African American child.  (The child was McCain’s adopted daughter from Bangladesh.)  Similarly, McCain’s wife, Cindy McCain was rumored to be a drug addict.  (Cindy McCain had admitted to having a prescription drug problem because of spinal surgeries.)

These lies were spread through push polls, a quasi-telemarketing device that calls people in the guise of a poll but whose purpose is to disseminate information.  This campaign practice reveals problems with prohibiting lies during political campaigns.  Sometimes the lies can have grains of truth, e.g. Cindy McCain’s prescription drug problem.  Sometimes, false information is buried in questions, not in statements.  The regulation of lies can too easily lead to the regulation of questions.  The more sophisticated our techniques for manipulating public opinions become, the more challenging it is to identify the “malicious intent” necessary for proving libel or to determine conclusively what is a lie.  Public officials can even bury their lies in the methods used to uncover the truth.

Given the efficacy of lies, Americans may be tempted to turn to the government to make their politicians more honest.  But democratic citizens should resist that temptation.  First of all, some political lies may be desirable, e.g. lies involving state security.  Second, political elites are fallible.  Recent psychological research shows that humans’ opinions too often rest on the opinions of others. The efficacy of lies partially reflects the laziness of democratic citizens: They don’t care if their opinions are true. Such attitudes prevent the right to lie from being countered by the social and political conditions conducive to uncovering the truth.

This leads me to an overlooked aspect of the Susan B. Anthony v. Driehaus: the deep disagreement about what is true. The SBA never admitted to lying about Driehaus supporting government funded abortions.  For them, a vote for the Affordable Care Act was a vote for abortion.  Ohio’s Election Committee and the Courts ruled otherwise.  Neither side agreed about the basic facts of the matter.  Perhaps, SBA was simply building its legal defense.

Or this case reflects the depth of the political divide in the United States: Americans literally live in different worlds. People have irreconcilable understandings about what is happening and point to diametrically opposed evidence to support their opinions.  In regards to evidence for having a government-funded abortion, some point to the lack of the word “abortion” in the ACA while others highlight the subsidies to poor people’s healthcare plans.  Facts are used to support one’s opinions, and dismissed as “opinion” if facts conflict with one’s political commitments.  Their understandings of what is happening in the world depend on their political opinions.

The political theorist Hannah Arendt would find the lack of concern about the truthfulness of one’s opinions as disturbing.  For Arendt, if we no longer ground our opinions in reality, a shared reality, and if what is happening has no bearing on our opinions, then humans lose an important reason to settle conflicts through deliberations.  Why should you speak with, as opposed to killing, people whose opinions are not grounded in reality?  Our humanity depends on bridging these irreconcilable realities.

If Arendt is right, democratic citizens need to become less cynical about lies.  They need to choose media outlets that encourage them to fill in the gaps between their different political realities.  They need a media committed to verifying opinions as opposed to merely reporting them. Instead of making opinions the news, the media must factcheck on our behalf in ways that traverse worlds.

One possible reason for the popularity of comedic TV hosts John Stewart and Steven Colbert is their willingness to call out public figures on their lies, or at least reveal their inconsistencies.  They provide a historical memory of politicians’ actions that is independent of how the current government officials want to be remembered.  Factchecking can sometimes be entertaining.  Hopefully, its entertainment value will provide enough of a draw that the right to lie can be offset by a political culture that amplifies the voice of, and demand for, fact-checkers.  Such a political culture is unlikely to come from the government.

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Note:  This article gives the views of the author, and not the position of USApp– American Politics and Policy, nor of the London School of Economics. 

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Suzanne Dovi 80x108Suzanne Dovi – University of Arizona
Suzanne Dovi is an Associate Professor of the School of Government and Public Policy at the University of Arizona. Her research interests include democratic theory, representation (especially the representation of historically disadvantaged groups), feminist theory and human rights. Her book, The Good Representative, explores how democratic citizens should evaluate those who hold and exercise power over vulnerable and marginalized groups.  She is currently working on a book entitled The Boundaries of Democratic Accountability.